Supreme Court of the United States

Transcription

1 NO. 16- In the Supreme Court of the United States GLAXOSMITHKLINE LLC v. M.M. EX REL. MEYERS, et al., PETITIONER, RESPONDENTS. On Petition for a Writ of Certiorari to the Illinois Appellate Court PETITION FOR A WRIT OF CERTIORARI March 23, 2017 JEFFREY S. BUCHOLTZ Counsel of Record ETHAN P. DAVIS DAVID P. MATTERN KING & SPALDING LLP 1700 Pennsylvania Ave., NW Washington, DC (202) jbucholtz@kslaw.com Counsel for GlaxoSmithKline LLC

2 i QUESTION PRESENTED The Due Process Clause allows a state court to exercise specific personal jurisdiction over a nonresident defendant only when the plaintiff s claims arise out of or relate to the defendant s forum activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citation omitted). The question presented is: For a claim to arise out of or relate to a defendant s forum-state contacts, must there be a meaningful causal link between the defendant s forum-state contacts and the plaintiff s claim?

3 ii PARTIES TO THE PROCEEDING 1. Petitioner GlaxoSmithKline LLC was a defendant in the Circuit Court and the petitioner in the Illinois Appellate Court. 2. The following individuals were plaintiffs in the Circuit Court, appellees in the Illinois Appellate Court, and are respondents in this Court: A.H., a minor, by and through Dawn Hinton, her mother and next friend; H.C., a minor, by and through Amy Christy, her mother and next friend; H.H., a minor, by and through Kristen Hozempa, his mother and next friend; A.K., a minor, by and through Kathryn Keady, his mother and next friend; C.S., a minor, by and through Stacey Schutte, her mother and next friend; and C.E., a minor, by and through Shannon Emery, his mother and next friend. 3. The following individuals were plaintiffs in the Circuit Court but were not parties in the Illinois Appellate Court and are not parties in this Court: M.M., a minor, by Audrey Meyers, her mother and next friend; and P.M., a minor, by and through Linda Butler, his mother and next friend. 4. The following entities were defendants in the Circuit Court but were not parties in the Illinois Appellate Court and are not parties in this Court: Wolters Kluwer Health, Inc.; Wolters Kluwer United States, Inc.; and Walgreens Company.

4 iii RULE 29.6 DISCLOSURE STATEMENT GlaxoSmithKline LLC is owned through several levels of wholly owned subsidiaries by GlaxoSmithKline plc, a publicly held public limited company organized under the laws of England.

5 iv TABLE OF CONTENTS QUESTION PRESENTED... i PARTIES TO THE PROCEEDING... ii RULE 29.6 DISCLOSURE STATEMENT... iii TABLE OF AUTHORITIES... vii DECISIONS BELOW... 1 JURISDICTION... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 1 INTRODUCTION... 2 STATEMENT... 6 A. Legal Background B. Factual Background C. GSK s Motion To Dismiss D. The Decision Below REASONS FOR GRANTING THE PETITION I. Federal and State Courts Are Split Over The Arising-From Requirement for Specific Jurisdiction A. Courts Disagree Over Whether Specific Jurisdiction Requires But- For Causation, Proximate Causation, Or No Causation B. This Case Is An Excellent Vehicle to Decide The But-For Versus Proximate Causation Side of the BMS Split

6 II. v The Illinois Appellate Court s Decision Is Wrong A. The But-For Standard Is Infinitely Malleable and Subject to Abuse B. The Decision Below Reinstates The Old, Rejected Standard for General Jurisdiction III. Like BMS, The Decision Below Implicates A Recurring Question of Significant National Importance CONCLUSION APPENDIX Appendix A Order Denying Petition for Leave to Appeal in the Supreme Court of Illinois (November 23, 2016)... App. 1 Appendix B Opinion in the Appellate Court of Illinois, First District (August 26, 2016)... App. 2 Appendix C Order Granting Petition for Leave to Appeal in the Appellate Court of Ilinois, First Judicial District (September 10, 2015)... App. 32 Appendix D Order in the Circuit Court of Cook County, Illinois County Department, Law Division (June 10, 2015)... App. 34

7 vi Appendix E Transcript of Proceedings in the Circuit Court of Cook County, Illinois, County Department, Law Division (June 10, 2015)... App. 36 Appendix F Complaint in the Circuit Court of Cook County, Illinois County Department, Law Division (July 2, 2014)... App. 86 Appendix G Amended Reply in Support of Motion to Dismiss the Six Out-Of-State Plaintiffs Claims for Lack of Personal Jurisdiction in the Circuit Court of Cook County, Illinois County Department, Law Division Excerpt Exhibit A - Amended Declaration of Kalpesh Joshi (January 23, 2015)... App. 127

8 vii TABLE OF AUTHORITIES Cases Allen et al. v. Janssen Pharm. et al., No CC (22nd Jud. Cir. Ct., City of St. Louis) Avocent Huntsville Corp. v. Aten Int l Co., 552 F.3d 1324 (Fed. Cir. 2008) Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874 (Cal. 2016) pet. for cert. granted, No (Jan. 19, 2017) Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)... 15, 24, 25 Butner v. United States, 440 U.S. 48 (1979) Caterpillar, Inc. v. Int l Union, United Auto., Aerospace, and Agric. Implement Workers of Am., 107 F.3d 1052 (3d Cir. 1997) Daimler AG v. Bauman, 134 S. Ct. 746 (2014)... passim Dep t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008)... 16, 25, 28 Dura Pharms., Inc. v. Broudo, 544 U.S. 336 (2005) Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830 (1996)... 27

9 viii Fitts, et al. v. GSK, No CC00539 (22nd Jud. Cir. Ct., City of St. Louis) Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011)... 18, 29 Gridley v. State Farm Mut. Ins. Co., 840 N.E.2d 269 (Ill. 2005) Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) Harlow v. Children s Hosp., 432 F.3d 50 (1st Cir. 2005)... 15, 20, 21, 24, 26 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984)... 13, 14 Hogans v. Johnson & Johnson, No CC (22nd Jud. Cir. Ct., City of St. Louis) Holmes v. Sec. Inv'r Prot. Corp., 503 U.S. 258 (1992)... 24, 25, 27 Int l Shoe Co. v Washington, 326 U.S. 310 (1945)... 6 Keller v. Henderson, 834 N.E. 2d 930 (Ill. App. 2005) Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct (2014) Menken v. Emm, 503 F.3d 1050 (9th Cir. 2007) Nowak v. Tak How Invs., Ltd., 94 F.3d 708 (1st Cir. 1996)... 15, 23

10 ix O Connor v. Sandy Lane Hotel Co., 496 F.3d 312 (3d Cir. 2007)... 15, 16, 23, 26 Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210 (11th Cir. 2009)... 14, 16 Pac. Operators Offshore, LLP v. Valladolid, 565 U.S. 207 (2012) Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928) Paroline v. United States, 134 S. Ct (2014)... 24, 25, 26 Perry v. Leeke, 488 U.S. 272 (1989) Robinson v. Harley-Davidson Motor Co., 316 P.3d 287 (Or. 2013) Robinson v. Pfizer Inc., No. 4:16-CV-439 (CEJ), 2016 WL (E.D. Mo. Apr. 29, 2016) Russell v. SNFA, 2013 IL (2013)... 11, 20 Shell et al. v. General Motors, No cc00346 (22nd Jud. Cir. Ct., City of St. Louis) Shoppers Food Warehouse v. Moreno, 746 A.2d 320 (D.C. 2000) Shute v. Carnival Cruise Lines, 783 P.2d 78 (Wash. 1989) Shute v. Carnival Cruise Lines, 897 F.2d 377 (9th Cir. 1988), rev d., 499 U.S. 585 (1991)... 15

11 x State ex rel. Norfolk S. Ry. Co. v. Dolan, No. SC 95514, 2017 WL (Mo. Feb. 28, 2017) Tatro v. Manor Care, Inc., 625 N.E.2d 549 (Mass. 1994) The G.R. Booth, 171 U.S. 450 (1898) Timms v. Johnson & Johnson, No. 4:16-cv JAR, 2016 WL (E.D. Mo. Jul. 11, 2016) TV Azteca v. Ruiz, 490 S.W.3d 29 (Tex. 2016), pet. for cert. filed, No (Oct. 7, 2016) ubid, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421 (7th Cir. 2010)... 16, 22 Walden v. Fiore, 134 S. Ct (2014) Waters v. Merchants Louisville Ins. Co., 36 U.S. 213 (1837) World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)... 6, 7, 30 Statutes 28 U.S.C. 1257(a)... 1 Illinois Code of Civil Procedure 2-209(c)... 1 Constitutional Provision U.S. Const. Amend XIV... 1

12 PETITION FOR A WRIT OF CERTIORARI GlaxoSmithKline LLC ( GSK ) respectfully petitions for a writ of certiorari to review the judgment of the Illinois Appellate Court in this case. DECISIONS BELOW The decision of the Appellate Court of Illinois, First District, Fifth Division, is reported at 61 N.E.3d 1026 (Pet. App. 2 31). The Supreme Court of Illinois order denying GSK s petition for leave to appeal is reported at 65 N.E.3d 842 (Table) (Pet. App. 1). JURISDICTION The Illinois Appellate Court issued its decision on August 26, The Supreme Court of Illinois denied GSK s petition for leave to appeal on November 23, On February 10, 2017, Justice Kagan extended the time for filing a petition for certiorari to and including March 23, This Court has jurisdiction under 28 U.S.C. 1257(a). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Due Process Clause of the Fourteenth Amendment, U.S. Const. amend XIV, 1, provides: [N]or shall any State deprive any person of life, liberty, or property without due process of law.... Section 2-209(c) of the Illinois Code of Civil Procedure permits Illinois courts to exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.

13 2 INTRODUCTION This petition presents a question about personal jurisdiction that has deeply split the federal courts of appeals and state high courts. When a plaintiff seeks to establish specific jurisdiction over a non-resident defendant, must the plaintiff show that the defendant s forum-state contacts proximately caused the plaintiff s injuries, or is it enough that those contacts were a but-for cause of the plaintiff s injuries? Six courts adhere to a proximate-causation standard or a standard closely resembling proximate causation. Five courts, including the court below, have adopted a but-for causation standard or a standard closely resembling but-for causation. And four other courts apply an even looser standard that does not require any showing of causation. The disagreement is acknowledged in the courts below, and it is so acute that personal jurisdiction frequently turns on whether the plaintiff sues in federal or state court in a given state. Recognizing that the conflict below is intolerable, the Court has already granted certiorari to resolve at least one side of the three-way split. In Bristol-Myers Squibb Co. v. Superior Court, No , the question presented is [w]hether a plaintiff s claims arise out of or relate to a defendant s forum activities when there is no causal link between the defendant s forum contacts and the plaintiff s claims that is, where the plaintiff s claims would be exactly the same even if the defendant had no forum contacts. BMS Pet. i (emphasis added). The Court should answer that question in the negative. Stopping there, however, would leave the

14 3 lower courts without needed guidance, as the but-for versus proximate causation split would persist. Moreover, because but-for causation lacks any limiting principle, it would accomplish little to reject California s amorphous non-causal standard only to leave in place a but-for standard that is no more predictable, and only marginally less malleable, in its application. The Court therefore should hold in BMS that a proximate causal link is required. See BMS Opening Br , No (filed Mar. 1, 2017); GSK Amicus Br , BMS v. Superior Court, No (filed Mar. 8, 2017) ( GSK BMS Amicus Br. ). If, however, the Court decides in BMS only that some form of causation is required, it should grant this petition. This case is an excellent vehicle to decide the but-for versus proximate cause side of the BMS split, and that aspect of the split is just as certworthy as the no-causation versus causation side. At a minimum, the Court should hold this petition pending its decision in BMS and then grant certiorari, vacate the decision below, and remand for further consideration in light of its decision in BMS. Respondents here are six mother-child pairs who allege that petitioner GlaxoSmithKline LLC s drug Paxil caused birth defects. The respondent mothers were prescribed and ingested Paxil outside of Illinois, the respondent children suffered their alleged injuries outside of Illinois, and the respondents live outside of Illinois. GSK, for its part, is not incorporated in Illinois and does not have its principal place of business there. Yet respondents chose to sue in the Circuit Court for Cook County, Illinois.

15 4 Unwilling to openly embrace the causation-free personal jurisdiction theory under review in BMS, respondents went hunting for some way to tie GSK to Illinois. They seized on GSK s clinical trial program for Paxil, contending that their claims arose out of the alleged inadequacy of that program concerning birth-defect risk. The notion that respondents birthdefect claims are meaningfully tied to the clinical trial program is difficult to credit, since that program in accordance with FDA guidance cautioning against exposing developing fetuses to drugs under study excluded pregnant women and thus was not designed to study birth-defect risk. More to the point, however, the clinical trial program had only the barest of connections to Illinois: it involved hundreds of trials conducted at thousands of study sites across the nation and around the world, with only a handful of sites in Illinois. And respondents made no allegations that anything that occurred at an Illinois site gave rise to their claims. In particular, they did not even allege that any pregnancies had occurred at the Illinois sites, let alone that GSK had failed to follow up to learn the outcome of such a pregnancy in a way that could be relevant to their claims. The Illinois Appellate Court, despite all this, held that respondents claims were sufficiently connected to GSK s Illinois activities. It reasoned that the data generated from the miniscule Illinois portions of the trials had been aggregated with the data generated in the 44 other states and nine other countries that had hosted trial sites. The decision below is little more than a dressed-up version of the California Supreme Court s causation-free approach

16 5 under review in BMS. While the court below relied on GSK s nationwide clinical trial program for Paxil, the BMS court invoked BMS nationwide marketing program for Plavix. Under both decisions, a large company with nationwide operations is subject to jurisdiction on essentially any claim in essentially any state. When that approach was called by its true name universal general jurisdiction the Court rejected it, holding in Goodyear and Daimler that continuous and systematic activities in a state are not enough to justify jurisdiction not tied to the defendant s forum-state activities. Exercising jurisdiction without a meaningful link between the defendant s forum-state activities and the plaintiff s claim is just as exorbitant (Daimler AG v. Bauman, 134 S. Ct. 746, 751 (2014)) when, as in this case and in BMS, the lower courts call it specific jurisdiction. If the Court does not resolve the proximate versus but-for causation side of the split in BMS, it should grant this petition to do so. The decision below powerfully illustrates the problems with not requiring a proximate causal link between the plaintiff s claim and the defendant s forum-state activities. The portion of GSK s clinical trial program that occurred in Illinois is far too miniscule to be viewed as a proximate cause of respondents claims; proximate causation exists precisely to weed out such distant, attenuated, and insignificant events. If the handful of Illinois trial sites can be said to be a butfor cause of respondents claims, then so can the trial sites hosted by each of the 44 other states and nine other countries. That just underscores the fundamental problem with but-for causation: many things can be but-for causes without thereby being

17 6 meaningful causes. Indeed, the court below rejected GSK s argument that there must be a meaningful link between its Illinois activities and respondents claims. Pet. App. 25. The relatedness requirement is what is supposed to distinguish specific, or case-linked, jurisdiction from general, or all-purpose, jurisdiction. A relatedness standard so low as to encompass links in a historical chain that are not material causes of the plaintiff s claim would fail to perform that basic function. STATEMENT A. Legal Background. The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). This Court has identified two categories of personal jurisdiction: general or all-purpose jurisdiction, and specific or conduct-linked jurisdiction. Daimler, 134 S. Ct. at 751. Under general jurisdiction, a company may be sued on any and all claims against it, wherever in the world the claims may arise. Id. Under specific, or conduct-linked, jurisdiction, the commission of some single or occasional acts of the corporate agent in a state may suffice for jurisdiction, but only for a suit that relat[es] to that in-state activity. Id. at 754 (citing Int l Shoe Co. v Washington, 326 U.S. 310, 318 (1945)).

18 7 These constitutional limits serve two purposes. First, they protect[] the defendant against the burdens of litigating in a distant or inconvenient forum. World-Wide Volkswagen, 444 U.S. at 292. Second, they prevent the States through their courts from reach[ing] out beyond the limits imposed on them by their status as coequal sovereigns in a federal system. Id. at Three years ago, in Daimler, this Court held that a corporation is subject to general jurisdiction only where it is at home, which typically means where it is incorporated or has its principal place of business. 134 S. Ct. at 751, 760. Before Daimler, some courts had found general jurisdiction everywhere the defendant had continuous and systematic contacts, which amounted to universal general jurisdiction for large companies with nationwide operations. See id. at 761. Daimler explicitly rejected that standard and the exorbitant exercises of all-purpose jurisdiction it had spawned. Id. B. Factual Background. Petitioner is a pharmaceutical company that researches and develops medicines, vaccines, and consumer healthcare products. As a global company, GSK markets and sells its products in all 50 states. As relevant here, GSK manufactured Paxil, a drug that is FDA-approved to treat depression and certain anxiety disorders. GSK is a Delaware limited liability company with large corporate/administrative headquarters in Pennsylvania and North Carolina. Its sole member is GlaxoSmithKline Holdings (Americas) Inc., a Delaware corporation with its

19 8 principal place of business in Delaware. GSK is concededly not at home in Illinois. Respondents are six mother-child plaintiff pairs from Florida, Colorado, Virginia, Michigan, and Wisconsin. They joined with two pairs from Illinois in order to sue GSK in the Circuit Court for Cook County, Illinois. Pet. App Each respondent alleges that her child suffered birth defects arising out of the mother s ingestion of Paxil. Pet. App. 87. Each claims that GSK failed to warn about Paxil s alleged dangers if used during pregnancy, that Paxil was defectively designed, that GSK was negligent, breached warranties, and negligently misrepresented and concealed the risks of Paxil use during pregnancy. Pet. App C. GSK s Motion To Dismiss. GSK moved to dismiss respondents claims for lack of personal jurisdiction. GSK pointed out that respondents did not allege that they or their injuries had any connection to Illinois. Respondents live outside of Illinois. The physicians who treated them and wrote them prescriptions did so outside of Illinois. And they purchased and ingested Paxil outside of Illinois. GSK also noted that the only allegation about personal jurisdiction in the complaint that GSK does business in, and derives substantial revenue from, Cook County, Illinois was not enough to establish either general or specific jurisdiction. Pet. App. 92. After jurisdictional discovery, respondents argued that the court had specific jurisdiction because GSK conducted portions of certain clinical

20 9 trials of Paxil in Illinois. Pet. App Seizing on GSK s clinical trial program as giving rise to their claims was a stretch to begin with, because none of GSK s clinical trials for Paxil was designed to study birth-defect risk (as it generally is inappropriate to include pregnant women in trials because of the risks posed to the fetus). Pet. App In fact, the trials excluded women who were pregnant or, in many cases, were not using clinically-accepted contraception. Pet. App Nonetheless, respondents contended that GSK had failed to follow up on pregnancies that occurred during trials. Pet. App. 10. Seizing on GSK s clinical trial program as a basis to bring these claims in Illinois was even more of a stretch. The vast majority of GSK s clinical trials for Paxil 344 out of 361 had no connection at all to Illinois. Pet. App Only 17 trials, less than five percent of the total, involved even a single study site in Illinois. Id. Even those 17 trials had only a slight connection to Illinois; they were multi-center trials that occurred across hundreds of study sites in 45 states and many countries. Pet. App A mere three percent of the study sites in those 17 trials were in Illinois, involving a mere two percent of the study participants. See Pet. App (discussing locations of study participants). Because only five percent of the clinical trials had any connection to Illinois, and only three percent of the sites in those trials were in Illinois, Illinois hosted only 0.15 percent (five percent times three percent) of GSK s clinical trial program.

21 10 GSK thus responded that there was no personal jurisdiction in Illinois over a challenge to the clinical trial program as a whole because that program had only the tiniest connection to Illinois. And GSK explained that respondents did not even attempt to link their claims to the tiny Illinois sliver of the program. For example, respondents did not allege that GSK had failed to follow up on any pregnancies at the Illinois sites, or even that any pregnancies had occurred at the Illinois sites. Nor did respondents point to anything else about the Illinois portions of the trials that was supposedly relevant to their claims. The trial court denied GSK s motion. The court reasoned that existing precedent did not supply a bright line for what percentage of GSK s clinical trials had to have occurred in Illinois to justify finding that respondents claims arose from the Illinois portions of those trials. Pet. App. 11. The court thus decided to muddle through it. Pet. App. 81. After suggesting that enforcing the arising-from requirement was less important because GSK is a global company with sales in all states a view that echoes the California Supreme Court s sliding scale approach in BMS the court concluded that the plaintiffs[ ] claim[s] relate to or arise from GSK s substantial contacts with Illinois. Pet. App. 82. The court encouraged GSK to petition for permission to appeal, expressing the hope that if it goes up and case law is made, it will give us a better understanding and better standard. Pet. App. 12.

22 11 D. The Decision Below. GSK sought interlocutory review of the Circuit Court s decision, which the Appellate Court granted. That court then affirmed. It began by observing that GSK employed 16,323 people in the United States, 217 people who resided in Illinois, and it maintained an agent for service of process in Illinois. Pet. App. 8. The Appellate Court also emphasized that GSK currently has 184 sales representatives who market GSK s products in Illinois and that between 2000 and 2006 GSK had anywhere between 79 and 121 employees marketing specifically Paxil in Illinois. Id. The court did not suggest that respondents claims had anything to do with any of these Illinois contacts; instead, like the trial court and the BMS court, it seemingly mentioned these unrelated contacts to downplay the importance of enforcing the arising-from requirement. When the court turned to the arising from standard, it emphasized that the Illinois Supreme Court had described that requirement as lenient or flexible. Pet. App. 19 (quoting Russell v. SNFA, 2013 IL , 83 (2013)). Applying that relaxed standard, the Appellate Court reasoned that the fact that less than one-fifth of one percent of the clinical trials had occurred in Illinois was immaterial because GSK aggregated the data collected in Illinois with the data collected everywhere else. Pet. App. 21. Because [i]t was from that single set of data that defendant GSK drew its statistically significant conclusions with respect to Paxil s safety, the handful of Illinois study sites could not be discounted. Id. Likewise, the court stated that [t]he

23 12 Illinois data was aggregated with the other data to inform the warning label content for Paxil, upon which the out-of-state plaintiff mothers relied in making their decision to take the drug. Pet. App The court also invoked a declaration submitted by GSK that explained the clinical trial program. Pet. App. 18, 22. GSK explained that decisions about what hypotheses to study and how to design the clinical trials were made by GSK (and not in Illinois) not by each individual investigator with whom GSK would then contract to conduct the study at sites around the world. The declaration noted that contract investigators were responsible for recruiting study subjects and collecting data from the study participants at their respective site. However, the study site investigators have little or no input into or control over the study design protocol or analysis of the aggregate data collected from all study sites. Pet. App In the view of the court below, this declaration showed that the investigators at the Illinois study sites had some degree of input into, and control over, the clinical trials. Pet. App. 22. In any event, like respondents, the court did not identify anything that the Illinois investigators had allegedly done or failed to do that was relevant to respondents claims. To the contrary, the court simply rejected GSK s argument that a meaningful link between its Illinois activities and respondents claims was necessary. Pet. App The Illinois Supreme Court denied GSK s petition for leave to appeal. Pet. App. 1.

24 13 REASONS FOR GRANTING THE PETITION This petition presents a deep and acknowledged split over whether the arising-from standard for specific jurisdiction requires a proximate causal link between the defendant s forum-state activities and the plaintiff s claim or whether a but-for link is enough. The Court has already granted certiorari on a closely related question. In Bristol-Myers Squibb Company v. Superior Court, No (cert. granted Jan. 19, 2017), the question presented is whether a plaintiff s claim can be said to arise from or relate to a defendant s forum activities when there is no causal link between the claim and the forum activities. The Court should hold in BMS that a proximate causal link is required. If, however, the Court does not reach that question in BMS, it should grant this petition to decide whether the plaintiff must show a proximate causal link or only a mere but-for link. I. Federal and State Courts Are Split Over The Arising-From Requirement for Specific Jurisdiction. As the BMS petition explained, the federal courts of appeals and state high courts are deeply divided over the arising-from standard for specific jurisdiction. Specific jurisdiction exists only [w]hen a controversy is related to or arises out of a defendant s contacts with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). But this Court has not yet explained what sort of tie between a cause of action and a defendant s contacts with a forum is necessary to a

25 14 determination that either connection exists. Id. at 415 n.10. Without this Court s guidance, three [tests] predominate in the lower courts. Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1222 n.32 (11th Cir. 2009). One group of courts holds that if a defendant s contact with a forum is merely a but-for cause of the plaintiff s claim, the relatedness inquiry is met. Another group requires that the defendant s contacts be the proximate, or foreseeable, cause of the plaintiff s injuries. Still another group has held that no causal connection is required at all. In some states, whether a defendant is subject to personal jurisdiction can depend on whether the suit is filed in state or federal court. A. Courts Disagree Over Whether Specific Jurisdiction Requires But- For Causation, Proximate Causation, Or No Causation. But-For Cause. One group of federal and state courts holds that a claim arises out of or relates to a defendant s contacts with the forum if the contacts are a but-for cause of the claim. According to these courts, a plaintiff must show that he would not have suffered an injury but for the [the defendant s] forum-related conduct. Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007); Tatro v. Manor Care, Inc., 625 N.E.2d 549, 553 (Mass. 1994) (adopting a but for test ). These courts take the position that the but-for test is consistent with the basic function of the arising out of requirement it preserves the essential distinction between general and specific jurisdiction. Shute v. Carnival Cruise Lines, 897

26 15 F.2d 377, 385 (9th Cir. 1988), rev d on other grounds, 499 U.S. 585 (1991); see also Shute v. Carnival Cruise Lines, 783 P.2d 78, 82 (Wash. 1989) ( We adopt the but for test. ). Proximate Cause. A second group of courts disagrees with the but-for standard, criticizing it as vastly overinclusive because but-for causation has no limiting principle and instead literally embraces every event that hindsight can logically identify in the causative chain. O Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 322 (3d Cir. 2007) (alteration omitted). The First and Sixth Circuits hold that proximate causation is required. Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 715 (1st Cir. 1996); Beydoun v. Wataniya Rests. Holding, Q.S.C., 768 F.3d 499, (6th Cir. 2014). Under this standard, only consequences that proximately result from a party s contacts with a forum state will give rise to jurisdiction. Id. at 508 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Under the proximate-causation test, the defendant s in-state conduct must form an important, or [at least] material, element of proof in the plaintiff s case. Harlow v. Children s Hosp., 432 F.3d 50, 61 (1st Cir. 2005) (internal quotation marks omitted). The Third, Seventh, and Eleventh Circuits, along with the Oregon Supreme Court, apply tests resembling proximate cause but without using that term. According to the Third Circuit, specific jurisdiction requires a closer and more direct causal connection than that provided by the but-for test. O Connor, 496 F.3d at 323. The causal link must be

27 16 intimate enough to keep... personal jurisdiction reasonably foreseeable. Id. The Eleventh Circuit shares the Third Circuit s view, reasoning that the contact must be a but-for cause of the tort as well as a foreseeable consequence of the defendant s conduct. Oldfield, 558 F.3d at The Oregon Supreme Court likewise holds that the activity may not be only a but-for cause of the litigation; rather, the nature and quality of the activity must also be such that the litigation is reasonably foreseeable by the defendant. Robinson v. Harley-Davidson Motor Co., 316 P.3d 287, 300 (Or. 2013) (en banc). See also ubid, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 430 (7th Cir. 2010) ( But-for causation would be vastly overinclusive, haling defendants into court in the forum state even if they gained nothing from those contacts ); Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1079 (10th Cir. 2008) (Gorsuch, J.) (reserving the question whether but-for or proximate cause should be the standard). No Causal Relationship. Another group of courts requires no causal relationship between the defendant s forum-state contacts and the plaintiff s claim. The California Supreme Court decision under review in BMS exemplifies that approach. There, 575 non-california residents joined with 86 California residents in suing BMS in California state court. The plaintiffs claimed that BMS drug Plavix caused them personal injuries. The non-california plaintiffs were not prescribed Plavix in California, did not have their prescriptions filled by California

28 17 pharmacies, did not ingest Plavix in California, and did not suffer their alleged injuries in California. The California Supreme Court nonetheless exercised what it called specific personal jurisdiction over the non-resident plaintiffs claims. The court applied a sliding-scale approach, under which the intensity of [the defendant s] forum contacts and the connection of the [plaintiff s] claim to those contacts [is] inversely related. Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874, 885 (Cal. 2016). The court stated that [a] claim need not arise directly from the defendant s forum contacts in order to be sufficiently related to the contact to warrant the exercise of specific jurisdiction and that the defendant s forum contacts do not need to be either the proximate cause or the but for cause of the plaintiff s injuries. Id. Under those principles, the court thought it was enough that BMS nationwide marketing, promotion, and distribution of Plavix created a substantial nexus between [the plaintiffs ] claims and the company s contacts in California concerning Plavix. Id. at 888. The Federal Circuit and the highest courts of the District of Columbia and Texas subscribe to a similarly relaxed view of the arising-from requirement. The Federal Circuit considers whether the defendant s conduct relate[s] in some material way to the plaintiff s suit, describing its approach as far more permissive than either the proximate cause or the but for analyses. Avocent Huntsville Corp. v. Aten Int l Co., 552 F.3d 1324, (Fed. Cir. 2008). The D.C. Court of Appeals rejects strictcausation-based tests in favor of an approach

29 18 requiring only a discernible relationship between [the plaintiff s] claim and the defendant s conduct. Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 333, 336 (D.C. 2000) (en banc) (citation omitted). And the Texas Supreme Court says that its standard does not require proof that the plaintiff would have no claim but for the contacts, or that the contacts were a proximate cause of the liability. TV Azteca v. Ruiz, 490 S.W.3d 29, (Tex. 2016), pet. for cert. filed, No (Oct. 7, 2016). 1 Clarity in the standards for specific jurisdiction is particularly important in light of this Court s decisions in Daimler and Goodyear, which reined in the permissive approach to general jurisdiction that some courts had adopted. Rather than grappling with whether a defendant s contacts gave rise to specific jurisdiction, some courts had inappropriately exercised general jurisdiction based on the defendant s continuous and systematic contacts with the forum state. In Goodyear, this Court faulted another state appellate court for [c]onfusing or blending general and specific jurisdictional inquiries in holding that an out-of-state defendant was subject to personal jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, (2011). Daimler and Goodyear rejected this approach and reminded courts that they can exercise all- 1 The TV Azteca petition was scheduled to be considered at the Court s March 17, 2017 conference, but no action has been taken on it. If the Court intends to hold TV Azteca pending BMS, the same treatment is all the more warranted here, as this case is much more similar to BMS.

30 19 purpose jurisdiction over a defendant that is, jurisdiction that is not case-linked only if the defendant is at home in the forum. Decisions like BMS and the decision below show that old habits die hard. The relatedness requirement is what is supposed to make specific jurisdiction specific. If the general jurisdiction standard the Court announced in Goodyear and reaffirmed in Daimler is to be respected rather than circumvented in the guise of specific jurisdiction that is not meaningfully case-linked the Court s clarification of the relatedness standard is badly needed. B. This Case Is An Excellent Vehicle to Decide The But-For Versus Proximate Causation Side of the BMS Split. The question presented in BMS is whether a plaintiff s claims can be said to arise from or relate to a defendant s forum activities when there is no causal link between the defendant s forum-state contacts and the plaintiff s claims. See BMS Pet. i. This Court will thus decide, at a minimum, whether the California Supreme Court s holding that no causation is needed is correct. BMS also asks the Court to adopt the proximate-causation standard. BMS Opening Br GSK agrees that the Court should hold that a causal connection is required and that proximate causation is the appropriate standard. See GSK BMS Amicus Br If, however, the Court does not decide that important issue in BMS, it should grant this petition for plenary consideration in order to do so. At a

31 20 minimum, the Court should hold this petition pending its decision in BMS and then grant, vacate, and remand. This case is an excellent vehicle to resolve the but-for versus proximate cause side of the split. Although the court below did not explicitly acknowledge that it was applying a but-for standard, that is the only way to make any sense of its decision to uphold personal jurisdiction on a basis as distant and thin as the handful of study sites located in Illinois. Moreover, the court relied heavily on Illinois lenient and flexible standard for determining whether respondents claims relate to GSK s forum-state conduct. Pet. App (citing Russell, 2013 IL at 83). 2 That description fits a but-for standard but cannot plausibly be applied to a proximate causation standard. Cf. Harlow, 432 F.3d at 61 ( The relatedness requirement is not an open door; it is closely read, and it requires a showing of a material connection. This court steadfastly reject[s] the exercise of personal jurisdiction whenever the connection between the cause of action and the defendant's 2 Before the Illinois Supreme Court s decision in Russell, some Illinois courts had stated that the plaintiff s claims must directly arise out of the contacts between the defendant and the forum. Keller v. Henderson, 834 N.E. 2d 930, 936 (Ill. App. 2005). As the decision below illustrates, Russell s description of the standard as lenient and flexible has caused the Illinois courts to apply a standard more closely resembling but-for cause.

32 21 forum-state contacts seems attenuated and indirect. ) (citation omitted). The key to the court s conclusion appears to be the notion that the clinical trial program is a unitary whole from which the portions that occurred in Illinois, however small, cannot be separated. The court thus declared that [i]t was from that single set of data that defendant GSK drew its statistically significant conclusions with respect to Paxil s safety. Pet. App. 21. And from that premise, the court concluded that Paxil s warning labels were informed, in part, by the results of the Illinois clinical trials. Pet. App. 20. The in part in that sentence is doing a lot of work, given how tiny a part the Illinois sites played in the whole. But for the court, it was sufficient that the Illinois sites were part of the historical chain presumably along with the sites located in the other 44 states and nine countries. And respondents failure to allege that anything relevant to their claims occurred at the Illinois sites did not dissuade the court; there was thus no basis to find that GSK s Illinois activities gave rise to respondents claims in a more robust or direct sense. This case would have been decided differently in the jurisdictions that apply the proximate-cause standard. Illinois involvement in the clinical trial program was far too insignificant to say that it form[s] an important, or [at least] material, element of proof in [respondents ] case. Harlow, 432 F.3d at 61 (internal quotation marks omitted). With no allegations about anything that occurred at the Illinois study sites, the court s finding of specific jurisdiction boils down to the happenstance that GSK

33 22 contracted with 17 investigators in Illinois, out of untold thousands worldwide. 3 This case is also an excellent vehicle because it implicates the split described above in Illinois, where the Seventh Circuit and the Illinois state courts have required different causal links. The Seventh Circuit would have found no jurisdiction here, because that court holds that [b]ut-for causation would be vastly overinclusive, haling defendants into court in the forum state even if they gained nothing from those contacts. ubid, 623 F.3d at 430 (citation omitted). While the Illinois state courts apply a lenient and flexible standard, the Illinois federal courts require the connection to be close enough to make the relatedness quid pro quo balanced and reasonable. Id. at Divergent results in courthouses across the proverbial street from each other on a question as fundamental as personal jurisdiction are a clear signal that this Court s intervention is needed. Cf. Butner v. United States, 440 U.S. 48, 55 (1979) ( Uniform treatment... by both state and federal courts within a State serves to reduce 3 To be clear, GSK does not believe that anything that happened at the Illinois sites was even a but-for cause of respondents claims. As explained above (supra at 9), consistent with FDA guidance, GSK excluded pregnant women (and often also women not using clinically-accepted contraception) from the Paxil clinical trials. As a result, the clinical trial program was not and could not have been designed to study birth-defect risk. At this stage of the case, however, respondents allegation that the program was inadequate in that regard has been taken as true. See Pet. App. 22.

34 23 uncertainty [and] to discourage forum shopping.... ). II. The Illinois Appellate Court s Decision Is Wrong. Like the California Supreme Court s slidingscale, the lenient and flexible standard adopted by the court below would expose non-resident defendants to suits not meaningfully related to the defendants forum-state contacts effectively reinstating the old standard for general jurisdiction that this Court rejected in Daimler and Goodyear. The decision below is contrary to the principles of federalism that animate the personal-jurisdiction doctrine. A. The But-For Standard Is Infinitely Malleable and Subject to Abuse. The core problem with relying on mere but-for causation is that connections that are not meaningful may nonetheless be termed but-for causes. The essential flaw of but-for causation is that it has... no limiting principle; it literally embraces every event that hindsight can logically identify in the causative chain. O Connor, 496 F.3d at 322 (quoting Nowak, 94 F.3d at 715). A railroad guard s wellintentioned effort to help a passenger onto the train might be called a but-for cause of the passenger dropping a package of fireworks onto the tracks. But the guard s actions did not proximately cause the fireworks to explode. See Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928). Life is too short to pursue every human act to its most remote consequences; for want of a nail, a kingdom was lost

35 24 is a commentary on fate, not the statement of a major cause of action against a blacksmith. Holmes v. Sec. Inv'r Prot. Corp., 503 U.S. 258, 287 (1992) (Scalia, J., concurring). The proximate-cause standard requires a more substantial connection between the defendant s forum-state activities and the plaintiff s claim. Under that rule, the defendant s in-state conduct must form an important, or [at least] material, element of proof in the plaintiff s case. Harlow, 432 F.3d at 61 (internal quotation marks omitted). The proximate-cause standard thus filters out situations where the defendant s conduct is a but for cause in a loose sense, but was not a meaningful cause of the plaintiff s injury. A requirement of proximate cause thus serves... to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity. Paroline v. United States, 134 S. Ct. 1710, 1719 (2014). Cf. Caterpillar, Inc. v. Int l Union, United Auto., Aerospace, and Agric. Implement Workers of Am., 107 F.3d 1052, (3d Cir. 1997) (en banc) (Alito, J., dissenting) (giving examples of weak but-for causes). In fact, this Court has already strongly suggested that proximate cause rather than but-for cause is the appropriate standard. See Burger King, 471 U.S. at ( [W]here individuals purposefully derive benefit from their interstate activities, it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities. ) (citation and internal quotation marks

36 25 omitted) (emphasis added). And it has repeatedly admonished that specific jurisdiction may not be based on random, fortuitous, or attenuated connections. Id. at 475; see also, e.g., Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014). Unlike the Illinois Appellate Court s approach, the proximate-cause standard furthers all the basic purposes of personal jurisdiction: fairness, predictability, and federalism. The term proximate cause is shorthand for a concept: Injuries have countless causes, and not all should give rise to legal liability. Pac. Operators Offshore, LLP v. Valladolid, 565 U.S. 207, 223 (2012) (Scalia, J., concurring) (citation omitted). Put another way, [e]very event has many causes... and only some of them are proximate, as the law uses that term. So to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result. Paroline, 134 S. Ct. at Under this standard, a plaintiff seeking to hale a nonresident defendant into court must show a direct relation between the injury asserted and the injurious conduct alleged in the forum state. Holmes, 503 U.S. at 268. The proximate-cause standard fosters fairness. Specific jurisdiction is premised on something of a quid pro quo: in exchange for benefitting from some purposive conduct directed at the forum state, a party is deemed to consent to the exercise of jurisdiction for claims related to those contacts. Dudnikov, 514 F.3d at The proximate-cause standard respects the relationship between the benefits that a defendant receives from accessing a

37 26 forum state and the obligations the defendant incurs as a result. But-for causation, on the other hand, cannot be the sole measure of relatedness because it is vastly overinclusive in its calculation of a defendant s reciprocal obligations. O Connor, 496 F.3d at 322. If but-for causation sufficed, then defendants jurisdictional obligations would bear no meaningful relationship to the scope of the benefits and protection received from the forum. Id. (internal quotation marks omitted). The proximate-cause standard also enables defendants to predict what types of contacts with particular states could lead to what types of lawsuits there. That is because [p]roximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. Paroline, 134 S. Ct. at As the First Circuit explained, the proximate cause standard better comports with the relatedness inquiry because it so easily correlates to foreseeability, a significant component of the jurisdictional inquiry. Harlow, 432 F.3d at 61 (quotation omitted). Finally, proximate cause is a workable standard because it has a familiar meaning with a firm historical pedigree. Dep t of Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2004). It is a wellestablished principle of [the common] law, that in all cases of loss, we are to attribute it to the proximate cause, and not to any remote cause. Waters v. Merchants Louisville Ins. Co., 36 U.S. 213, 223 (1837). Proximate cause is based on the familiar maxim, Causa proxima, non remota, spectatur, which means that in law the immediate, not the

38 27 remote, cause of an event is to be regarded. The G.R. Booth, 171 U.S. 450, 453 (1898). This Court regularly draws on the established and familiar body of proximate-causation principles. Observing that courts have a great deal of experience applying proximate causation and that there is a wealth of precedent for them to draw upon in doing so, the Court has construed federal causes of action in a variety of contexts to incorporate a requirement of proximate causation. Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1390 (2014). See, e.g., Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (securities fraud); Holmes, 503 U.S. at 268 (RICO); cf. Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 839 (1996) ( courts sitting in admiralty may draw guidance from... the extensive body of state law applying proximate causation requirements ). For all these reasons, it would be highly incongruous to hold that the relatedness requirement for specific jurisdiction is satisfied by mere but-for causation. In simple terms, what distinguishes butfor from proximate causation is that proximate causes must be meaningful, while but-for causes often are not. And it is difficult to see virtue in holding that links that are not meaningful can nonetheless serve to make jurisdiction case-linked. B. The Decision Below Reinstates The Old, Rejected Standard for General Jurisdiction. In BMS, this Court should reject the California Supreme Court s nebulous sliding-scale approach